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Hojnowski v. Vans Skate Park3/10/2005
find that conclusion to have been in error.
As a general rule, the scope of an arbitrator's authority is set by the issues that he or she is called upon to decide. United Serv's. Auto. Ass'n v. Turck, 156 N.J. 480, 486 (1998); Berger v. First Trenton Indem. Co., 339 N.J. Super. 402, 406 (App. Div. 2001). Further," rbitrators in the private sector have broad discretion in determining legal issues" so long as they fall within the scope of the arbitration agreement. State of N.J., Dept. of Law and Pub. Safety, Div. of State Police v. State Troopers Fraternal Ass'n of N.J., Inc., 91 N.J. 464, 469 (1982)."The essence of arbitration is, of course, that the arbitrators decide both the facts and the law." Daly v. Komline-Sanderson Engineering Corp., 40 N.J. 175, 178 (1963).
In the present case, the arbitration agreement pertained to"any dispute between You and Vans." The language was thus sufficiently broad to encompass any issue regarding the construction of the contract itself. However, we find that the issue of whether Anastasia Hojnowski had the power and authority to limit the liability of Vans to her son Andrew for its negligence to be a matter of public policy, not contract interpretation. Further, we hold that such power was lacking in this case, and thus that Anastasia's waiver of liability was ineffective to limit the claims asserted on Andrew's behalf to anything less than the law would allow.
III.
We commence our analysis of the waiver of liability signed by Anastasia Hojnowski with its terms, which we find to be broad in scope, ambiguous and potentially misleading. First, it appears that liability of any nature is restricted by the release to that arising out of an unsafe condition of "equipment, structures and devices," thereby precluding claims of liability arising out of conduct, however negligent. Further paragraphs 3(c) and 4(b) of the waiver appear to be internally inconsistent, since paragraph 4(b) preserves the right to compensation for injuries caused by unsafe equipment, structures and devices, but paragraph 3(c) inferentially excepts from liability Vans' negligent failure to prevent or correct a hazard caused by unsafe equipment or devices. Paragraphs 3(c) and 6, viewed together, suggest that Vans sought to immunize itself from all liability except that caused by intentional conduct on its part that is related to equipment or devices, since each of the two paragraphs specifically preserves only those claims arising out of intentional harm in that regard. Even then, punitive damages are precluded by paragraph 3(f). Injuries caused by"another person," regardless of circumstances or the identity of the person, are precluded by paragraph 3(e). The release, however construed, is thus far-reaching in its impact, diminishing substantially or eliminating any right of recovery by Andrew arising from negligence and exemplary damages arising from intentional acts that might otherwise be available to him.
It has long been the law of New Jersey that without statutory authority or judicial authorization, a parent has no ability to release a claim properly belonging to a child.
Moscatello ex rel. Moscatello v. Univ. of Med. and Dentistry of N.J., 342 N.J. Super. 351, 360-61 (App. Div.), certif. denied, 170 N.J. 207 (2001); Riemer v. St. Clare's Riverside Med. Ctr., 300 N.J. Super. 101, 110-11 (App. Div.), certif. denied, 152 N.J. 188 (1997); Colfer v. Royal Globe Ins. Co., 214 N.J. Super. 374, 377 (App. Div. 1986) (citing precedent). See also R. 4:44- 1 to -3; R. 4:48A. A purpose of this rule is to guard a minor against an improvident compromise of his rights, whether or not the claim has ripened or suit has been instituted. Colfer, supra, 2
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